JUDGMENT

1. This is a judgment-debtor's appeal arising out of a suit on a puisne mortgage. The mortgagor had on 6th February 1903, mortgaged mauza Khajuri, the village with which we are concerned in this case, and other properties, to a person who had obtained a decree on the foot of his mortgage. The present judgment-debtor Chhote Lal, defendant 3 in the present suit, at an auction-sale purchased mauza Khajuri and subsequently paid off the full amount of the decree. The present suit was brought by one Bansidhar who had obtained a mortgage on 8th March 1911, which covered certain properties including amongst them mauza Khajuri, impleading, amongst others, Chhote Lal as defendant 3. Chhote Lal filed a written statement, but did not otherwise defend the suit. In the plaint, however, the existence of a charge in favour of Chhote Lal was recognized. In the decree in the present suit passed on 24th April 1922, there was no mention of Chhote Lal's charge, and the decree was finally upheld on 12th February 1927. On 12th March 1927, the decree-holder applied for execution by sale of certain properties, including mauza Khajuri. On 14th April 1927, objections were filed by Chhote Lal, of which the two material ones were as follows (we quote from the paper book of E.F.A. No. 291 of 1927):

No. 4-Mauza Khajuri is by no means fit to be sold at auction and under all circumstances the decree-holder cannot without payment of the prior encumbrance either get mauza Khajuri sold at auction or eject the objector, and the objector can 'Use the prior encumbrance as a shield.

No. 5-If in the opinion of the Court mauza Khajuri can be sold at auction, it can be sold at auction subject to the prior encumbrance aforesaid and not otherwise.

2. On 17th May 1927, the Subordinate Judge allowed the objections of the decree-holder his order concluding with the following words:

The result is that the objections are allowed with costs. The objector in my view is quite within his right to enforce a proportionate amount of his charge in respect of the property in dispute.

3. As a question arises in this appeal as to what were the "objections" of the judgment-debtor which were accepted, we will note here immediately that the use of the plural word "objections" is clearly merely by inadvertence. What the learned Subordinate Judge really allowed, and the only objection which clearly was pressed before him, was the fifth objection which we have noted above. This is clear from the following passage in the same judgment:

Rai Bahadur Lala Chhote Lal objects and pleads that the village Khajuri should be sold subject to his mortgage of 6th February 1903.

4. It is manifest from this that the objection which Chhote Lal was pressing was that the decree-holder was not entitled to sell the property free from his (Chhote Lal's) encumbrance altogether, and not any objection that he was entitled to have his charge discharged before the property could be put to sale at all. From the judgment and decree of the learned Subordinate Judge an appeal was filed to the High Court, E.F.A. No. 291 of 1927 which was decided by Sulaiman, J. and Banerji, J., on 19th April 1928. A perusal of that judgment again makes it manifest that the only matter in contest, whatever may have been the grounds of appeal between the decree-holder appellant and the judgment-debtor respondent was whether the sale should take place free from encumbrance, so far as Chhote Lal's claim was concerned, or whether it should take place subject to Chhote Lal's encumbrance. Clearly no question was there pressed before the Court other than these two respective views. What the view of the High Court was is clearly manifest from the following quotations:

It is now in the execution department that Chhote Lal comes forward for the first time and says that he has paid off a large sum of money and has priority over the plaintiffs claim and that therefore the property should be sold subject to his claim. The learned Subordinate Judge has u